Hague Convention case: an abducted child’s objection

In K (a child) (Hague Convention: child’s objections) [2014] EWCA Civ 1364, a judgment which came out today, the Court of Appeal upheld an earlier decision by High Court Judge Clifford Bellamy, sitting in the Family Division, not to return a child from the UK to Lithuania under the Hague Convention.  The Court of Appeal is, in general, the second highest domestic appellate court.  The case shows that a return can be prevented by the objections of a child even where those objections are based on developments after the abduction complained of took place.

The child concerned, aged just under 11 at the time of the original judge’s decision, had lived in Lithuania with both parents from birth until the summer of 2013. On 25 July 2013, mother and child ‘visited’ the UK, with the agreement of the father.  They did not return.  The parties accepted that the facts as described amounted to a ‘wrongful retention’ for Hague Convention purposes.  The Central Authority in Lithuania made a request for the child’s return, prompting the High Court proceedings in the UK to decide the issue.

After the child and mother were located in the UK, a hearing was arranged. The fact that they had to be located in the first place does not seem to sit well with the mother’s position at court that she had no objection to the child having contact with the father.  The delay in the matter being heard was because of problems with the mother obtaining legal aid – in the end, it seems that she did not get it (at least not for the hearing itself) and she was represented pro bono.  It is not clear whether the father, the aggrieved party, was in receipt of legal aid or not.  He probably wasn’t, despite the overwhelming importance of the case, although it is not clear from the judgment.

The original judge declined to order the child’s return for the reason that the child herself objected and that she was of a sufficient maturity for her views to be taken into account. He based this on article 13 of the Hague Convention which, insofar as it is relevant, says:

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

Source:  English Text of Hague Convention, Hague Conference on Private International Law

The Court of Appeal, when deciding the appeal brought by the father against the original judge’s decision, noted that much turned on the content of the CAFCASS officer’s report. CAFCASS is an organisation that seeks to portray the views of children in contested family proceedings.  The CAFCASS officer’s position was that this was a case that might be one of the unusual ones which should not succeed under the Hague Convention owing to the objections of the child.  At the same time, however, he expressed concern that the child might have been ‘influenced’.   The original judge, without the benefit of oral evidence from anyone other than the CAFCASS officer, concluded that the child’s objection was ‘authentically her own’ and that there was evidence relating to the father’s post-abduction conduct that gave rise to the child being afraid of him and thereby not wanting to return.  The original judge concluded that the child’s objection was, in this case, determinative.

In upholding the original judge’s decision not to order a return, the Court of Appeal concluded that it could not be shown that the original judge’s reasoning was inadequate. The father did not seek to challenge the fact that the child objected to returning, nor the conclusion that she had sufficient maturity for that to count.  The argument of the decision appealed being inadequately reasoned was based on the way in which the delay in the original hearing taking place – during which time the child put down roots etc in the UK – influenced the original judge’s decision when this delay was no fault of the father and, more importantly, such an approach would, it was said, undermine the whole reason for the Convention’s existence.  The Court of Appeal rejected this challenge because (as the lawyer representing the father partly came to realise)existing  case law indicated that the degree of integration of a child was something that could be considered and the original judge clearly had in mind the policy behind the Hague Convention.  Absent any misdirection as to the actual law, the Court of Appeal was not willing to interfere with the original judge’s exercise of discretion despite the fact that the original reasons given for it ought to have been ‘spelled out rather more clearly and specifically’ as the judgment put it.

In cases such as this, irrespective of the area of law involved, when original decision makers direct themselves adequately as to the underlying legal principles and seem to have had in mind all of the relevant evidence, reviewing courts are reluctant to intervene.

International Travel Child Consent Form now available in Japanese

The I Care Foundation, whose website is one of those that features on the blogroll adjacent to this post, has today issued its International Travel Child Consent Form in Japanese; the English version is available to view here.  The announcement on their website is reproduced below in Japanese and (below that) in English.

By sheer coincidence, and with no foreknowledge of today’s announcement, I was earlier today wondering to myself whether I might have grounds to bring a civil claim against the carrier that flew my son to Japan on the basis that a form such as this was not obtained. This is a subject which I shall return to.

I CARE財団の国際的な旅行をする子の同意書が日本語で提供

外国での片親により誤って奪取されている子に関わる国際的な親による子の奪取を防止するために作成されたI CARE財団の国際旅行の子の同意書 は現在、日本語でも提供されています。この旅行同意書は、1980年ハーグ国際的な子の奪取の民事上の側面に関する条約をめぐる法的な問題に対応し、日本から及び日本へ来る監視する国際的親による子の奪取の可能性のケースを担当する日本と世界の裁判所に、国際的な親による子の奪取に精通している国際的な法的、外交、そして司法の社会に広くサポートされる、ユニークで世界的に十分に確立された裁判所が実施する奪取防止ツールを提供します。
2014年の夏の間に実施された大規模なI CARE財団調査は国際的な親による子の奪取に深く精通した世界中の何百人もの弁護士や裁判官を調査しました。調査結果によれば、94ヶ国の1980年国際的な子の奪取の民事上の側面に関する条約の署名メンバー国の全ての国際的な親による子の誘拐の70%以上は、片親が子のもう一方の親の同意または裁判所の命令を得ることなく、不正に子供を外国で拘束し、残された親の保護権とターゲットとなった親に対する子の権利に違反する時に発生しています。この調査は1980年国際的な子の奪取の民事上の側面に関する条約の圧倒的な大半のケースに関わり、奪取している親は子供が不正に拘束されている国での裁判と元の司法権の国に子を戻さないという行為を期待し、ハーグ条約の12条と13条で提供されている誘拐の保護を利用する場合が多いです。  
ハーグ常設事務局事務総長のChristophe Bernasconi博士は、2014年春の初旬にハーグのピースパレスで開催された親による子の奪取会議及び2014年晩春にニューヨークで開催された婚姻専門弁護士の国際学会で、I CARE財団の旅行同意書は極めて良くできており、模倣する価値があり、子が外国で旅行する時に活用すべきな特に役に立つ子の奪取防止ツールであると述べていました。加えて、日本の札幌で開催された札幌弁護士協会のハーグシンポジウムで述べたハーグ常設事務局代表者は、家族法弁護士の大規模出席フォーラムでI CARE財団の旅行同意書の重要な実用性について言及していました。
ハーグ常設事務局事務総長のChristophe Bernasconi博士は以前、「旅行同意書を目にする可能性があり、以下について感銘を受けたということを述べなければなりません:これは私がこれまで見て来たlこの種のもので最も包括的な文書であり、これ子の奪取を防止する最も価値があり、重要な取り組みであるというのはほぼ疑いがありません。あなた方の取り組みを賞賛し、あなたとチームにおめでとうと申し上げたいと思います…あなたの国際旅行の子の同意書がいかに素早く実践的な成果を出し、いかにうまくその運用を監視しているのかということが分かり、本当に感動的です。これは本当に素晴らしいです。」
I CARE財団の国際担当常任理事のPeter Thomas Senese は以下のとおり述べていました。「I CARE財団の旅行同意書を活用して発生した国際的なこの旅行のケースの多くにより示されており、我々が把握している範囲では、この文書を利用した全ての子は帰宅できており、我々は国際的子の奪取防止の世界的な舞台においてハーグ作成の旅行同意書が持つ重要な役割を引き続き目撃しており、公式ハーグ旅行同意書をグローバルな高速防止のツールに取り込むことを検討する事務総長の意図をサポートしています。我々はグローバルな国際的親によるこの奪取の割合は、ハーグが作成した旅行どいしょの利用により大きく減少すると極めて楽観的に見ています。我々のかなりの研究によれば、全ての国際的な子供の誘拐の70%以上は、子が不正に外国で拘束されている時に発生しています – 我々の旅行同意書がうまく保護した親による子の誘拐のシナリオそのもの。
「I CARE財団の子を保護する献身的な取り組みを示しており、我々のグローバルに認知された国際的な旅行の同意書は現在、1980年ハーグ国際的な子の奪取の民事上の側面に関する条約の調印国で話される全ての言語を含め、30か国語に翻訳されており、されてきました。加えて、我々の旅行合意書周辺に数多くの法的な説明やその他の関連情報は引き続き、専門法律文書翻訳者の高レベルなチームにより全て30か国に翻訳されます。明らかに、これは小さな作業ではありませんが、欠くことのできない取り組みであることということを発表できることは喜ばしいことです。


The I CARE Foundation’s International Travel Child Consent Form Available In Japanese

The I CARE Foundation’s International Travel Child Consent Form created to prevent international parental child abduction associated with a child being wrongfully detained by one parent in a foreign country is now available in Japanese. The travel form addresses key legal issues revolving around the 1980 Hague Child Abduction Convention and provides Japan’s and courts worldwide charged with overseeing potential international parental child abduction cases to and from Japan with a unique, globally well-established court implemented abduction prevention tool that is widely supported by the international legal, diplomatic, and judicial communities familiar with international parental child abduction.

An extensive I CARE Foundation study conducted during the Summer of 2014 surveyed hundreds of attorneys and judges located around the world deeply familiar with international parental child abduction. The study’s findings showed that over 70% of all international parental kidnappings amongst the ninety-four 1980 Hague Child Abduction Convention member signatory nations occur when one parent wrongfully detains a child abroad without the child’s other parent’s consent or a court order, violating the left-behind parent’s right of custody and the child’s right to the targeted parent. The survey also concluded the overwhelming majority of 1980 Hague Child Abduction Convention cases associated with wrongful retention, the abducting parent often uses abduction defenses available to them under Article 12 and Article 13 of the Hague Convention in hope to have the court located in the country the child has been wrongfully detained in sanction their act of not returning the child to their country of original jurisdiction.

Hague Permanent Bureau Secretary General Dr. Christophe Bernasconi stated before hundreds of attorneys at the Lawyers in Europe on Parental Child Abduction Conference held at the Peace Palace in the Hague in the early Spring 2014, and the International Academy of Matrimonial Lawyers Conference held in New York in the late Spring of 2014 that the I CARE Foundation’s travel consent form was extremely well-designed, worth emulating, and an extraordinarily helpful child abduction prevention tool that should be utilized when children are traveling abroad. Additionally, Hague Permanent Bureau representatives speaking at the Sapporo Bar Association’s Hague Symposium held in Sapporo, Japan spoke to the large attending forum of family law attorneys about the significant usefulness of the I CARE Foundation travel consent form.

Hague Permanent Bureau Secretary General Dr. Bernasconi previously stated, “I have had the possibility to look at the travel form and must say that I am impressed: this is the most comprehensive document of its kind that I have seen so far and there is little doubt in my mind that this is a most valuable and important effort to prevent child abduction. I applaud your efforts and wish to congratulate you and your team… It is really impressive to see how quickly your international travel child consent form has started to yield practical results and how well you monitor its operation – this really is remarkable.”

The I CARE Foundation’s International Executive Director Peter Thomas Senese stated, “Demonstrated by the large number of international child travel cases that have occurred utilizing the I CARE Foundation’s travel form, whereas to the best of our knowledge every child who used the form returned home, we continue to witness the important role a Hague-oriented travel consent form has in the global theater of international child abduction prevention and support the Secretary General’s intent to consider incorporating an official Hague travel form into the arsenal of global abduction prevention tools. We remain highly optimistic that the global international parental child abduction rate will substantially decline due to use of Hague-oriented travel consent forms. Our substantial research indicates that over 70% of all international child kidnappings occur when a child is wrongfully detained abroad – the exact parental kidnapping scenario our travel form has successfully protected against.

“Demonstrating the I CARE Foundation’s commitment to protecting children, I am pleased to announce that our globally recognized International Travel Child Consent Form is presently being or has been translated into 30 languages, including every language spoken by signatory countries of the 1980 Hague Child Abduction Convention. In addition, numerous legal briefs and other pertinent information surrounding our travel form have and will continue to be translated into all 30 languages by a high-caliber team of professional legal translators. Obviously this is no small task; however, it is a vital undertaking.

“With respect to Japan, and for that matter all nation’s and their children, the creation and use of our travel consent form is rather simple: children have a right to know magic and to live in a world free of concern from parental child abduction. And targeted parents of abduction have a right to have society protect their children from kidnapping. We believe in these rights. Our work and dedication continues.”

Source:  I Care Foundation website (accessed on 16 October 2014)

Another Hague case

There have been reports that another child has been returned to Japan by virtue of the Hague Convention.  Needless to say, the seeming alacrity of non-Japanese courts as to enforcing the Convention’s provisions has yet to be matched, adequately or at all, by the Japanese judicial branch. The only statistic that stands out in the above article is that of the 12 pending applications for the return of children taken to Japan.  It remains to be seen what happens when one of those applications fall to be determined by the Japanese courts.  Bear in mind that this figure represents 12 cases of abduction to Japan since the Hague provisions came into force in April this year.  Somewhat alarmingly, it equates to about an abduction to Japan every 2 weeks or so (and only counting the reported cases) – which suggests that the Convention acquiring legal force has not had any deterrent effect in Japan and things continue much as before. The latest case concerned a child taken from Japan to the United States.  The article written about it here also refers to the Swiss case that I posted about 2 days’ back. Yet these cases also represent a paradox:  as set out fully in this excellent blog by an American father, the return of these children to Japan, even if otherwise the right thing to do, will risk the overseas (invariably non-Japanese) parent losing all contact with the child concerned because of the refusal of Japanese courts to accept the principle of contact with the non-resident parent, let alone any notion of dual parenting.  My email to the Foreign Office in August 2014 made these points and others but has not yet been responded to.  That perhaps is not surprising as the status quo is, notwithstanding Japan’s joining to the Hague Convention, undeniably unacceptable; but, it being a matter for Japan, there is nothing that foreign governments can do about it.  There remains an absolute need for a root and branch shake up of attitudes to family law in Japan as, without this, Japan’s membership of the Hague Convention will, in some cases, be an unwelcome fact.

Swiss court orders return of child to Japan

Today’s Japan Times reports as its second item that a Swiss court has now ordered the return of a child to Japan under the Hague Convention.  This follows reports in the summer of a UK court doing likewise, about which I wrote here and here.  The Swiss case concerned an 8 year old boy taken to Switzerland from Japan by his American father; the return was ordered last month but reports about it have only just surfaced in Japan – and seemingly nowhere else at the time of writing.  The suspicion has to be that, but for the fact that the abducting parent in this case is reported to have been a non-Japanese, the Foreign Ministry in Tokyo – which prompted the piece in The Japan Times – would not have drawn attention to the case.  The only other English report that I could find was this one on the Japan News website which covers similar ground.  At the time of writing, there is only one comment at the bottom of the JT article – it being the night in Japan – but it would be an idea to revert back to it for the comments which are likely to be more instructive than the coverage itself.

Shinkansen marks 50 years of service: 1 October 1964-1 October 2014

The Nozomi No. 200 superexpress, Wednesday’s first bullet train departure from Shin-Osaka Station, is sent off with a ribbon-cutting ceremony. | KYODO

The Japan Times 

Shinkansen marks 50 years of service

Oct 1, 2014

The bullet train, an iconic symbol of Japan’s postwar economic boom, marked 50 years of service on Wednesday with a celebratory ceremony at Tokyo Station.

A state-of-the-art N700A bullet train left the station bound for Fukuoka at 6 a.m., witnessed by officials of Central Japan Railway Co. (JR Tokai) and special invitees born the same year as the shinkansen.

Similar ceremonies were held in Shizuoka, Nagoya and Osaka.

Bullet trains got their start on the Tokaido Shinkansen Line, which revolutionized the country’s transportation network when it began service on Oct. 1, 1964, nine days before the opening of the Tokyo Olympics.

It was the world’s fastest train, with a top speed of 210 kph, cutting the 515-km route between Tokyo and Osaka to four hours.

Shinkansen trains now travel the route at up to 270 kph and take just two hours and 25 minutes to connect the metropolises. The top speed will be raised to 285 kph next spring.

The line has carried a remarkable 5.6 billion passengers and its trains have covered a cumulative 2 billion km, the equivalent of 50,000 trips around the Earth. An average of 424,000 passengers use it every day, compared with over 60,000 during its first year.

The shinkansen “is representative of Japanese technology and the embodiment of the powers of many companies,” JR Tokai President Koei Tsuge said at the Tokyo Station ceremony. “We will continue to deliver safer, more comfortable and more precise-time transportation.”

Subsequent shinkansen lines extended the network across Japan as far as Aomori Prefecture in the north and Kagoshima Prefecture in the southwest.

More lines are under construction or in the planning stage, including a next-generation magnetically levitated train, which JR Tokai is expected to start working on next year.

If all goes according to plan, it will link Nagoya and Shinagawa Station in Tokyo in just 40 minutes starting in 2027, and will run at speeds of up to 500 kph.